Fake news is a real dilemma for the law

The labelling of information as “fake news” has become yet another weapon in battles
of the Trump presidency, used by the administration and its supporters as well as
its critics.

But the label has been applied to a wide variety of information, including both reporting
errors and truthful information that the person applying the “fake news” label does
not like or approve of. The label has also been applied to intentionally inaccurate,
incomplete or misleading information disseminated in the media, and sometimes by official
White House spokespeople.

With all these allegations of “fake news,” it has become unclear what the term actually
means, and how it differs from spin and framing of news and events. But it seems safe
to define it as untruthful information made public by a seemingly journalistic entity
with the intention of misleading the public, often to score a political point. Such
“news” may be politically and socially undesirable. But it would likely be difficult
to combat such information and its purveyors legally because of the legal principles
that have developed to protect news and commentary under the First Amendment.

First of all, it is all but impossible to prevent the publication of alleged “fake
news” — or any information, really — before it is actually made public. The U.S. Supreme Court has held that such prior
restraints are allowed only in the most extraordinary circumstances, such as when
the information reveals national security information. But even that is construed
narrowly, with the Court holding that the government could not stop The New York Times
and other newspapers from publishing the Pentagon Papers, a classified history of
our involvement in Vietnam, even as the war there was still going on. In another case
that did not reach the Supreme Court, a federal judge barred publication of an article
detailing in the inner workings of the hydrogen bomb.

So if “fake news” cannot be barred from publication, what can be done legally after
it is published? Likely, not much. That is because it’s difficult to sue unless the
false information actually harms someone: by hurting their reputation, invading their
privacy, or causing another harm such as emotional distress.

In order to hurt someone’s reputation, a statement must be a “statement of fact.”
This does not mean that the statement is actually, provably true; instead, it means
that it is presented as if it was true. Statements that are not presented as if they
are true – such a parodies or satire such as in The Onion or Saturday Night Live’s
“Weekend Update” segment — cannot be the basis of a successful defamation claim, because the statements are
not made with the expectation that they will be taken as truth. Some “fake news” sources
explicitly state that they are parody, and should not be taken seriously. But even
if a source does not explicitly say this, a court will likely dismiss a libel claim
against such a source.

It also may be possible for a source of “fake news” to assert that a statement is
not a statement of fact but is instead a statement of opinion. Since a statement of
opinion cannot be demonstrably proven true or false, making this assertion may lead
a court to dismiss a claim against a “fake news” source. This opinion exception does
not apply, however, if the statement is couched as an opinion but actually states
a fact. Thus the statement, “I think she is a murderer” is actionable, because it
includes an allegation— that the person being discussed is a murderer— that can (theoretically) be proven true or false.

Another complication in taking action against “fake news” comes from the standard
of fault applicable in these cases. Since most “fake news” involves public officials,
public figures, and/or matters of public concern, the “actual malice” standard would
apply. This means that a plaintiff who is a public official or public figure would
have to show that the statement was made with either actual knowledge that it was
untrue or “reckless disregard” for whether the statement was true or false. This is
a difficult burden to meet, and courts have given speakers— the media and others — broad latitude in asserting that publishing the material was not totally irresponsible.

In addition to “fake news” being created and distributed by those trying to score
political points, another trend has been the labelling reporting that a person or
entity does not like as “fake news.” Taking legal action in this situation for defamation
or commercial disparagement may be possible, if the plaintiff can show that the “fake
news” claim actually damaged the reporter’s or news organization’s reputation as a
reliable source of information. But the defendant – the one who labelled the information
as “fake news” — will likely be able to respond that their evaluation was a statement
of opinion. (Last week, the publisher of the Grand Junction, Colorado Daily Sentinel
threatened to sue a state senator who labelled an editorial in the newspaper as “fake
news.”)

In short, it would be difficult to stem the proliferation and distribution of “fake
news” under the law, and would be similarly difficult to use the law to stem charges
that particular information is “fake news.” But that does that mean that the First
Amendment rights of freedom of speech and the press have no role to play, just that
it will likely be more in the principles that these rights embody. Under these principles,
the way to combat false or misleading speech is with more speech, offering rational,
factual information. The idea – the hope? – is that from this Tower of Babble, accuracy
and truth will win out.

Eric P. Robinson, Esq.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication,
where he focuses on media law and ethics.

He has worked in media law for 17 years, and is admitted to legal practice in New
York and New Jersey and before the U.S. Supreme Court.

This column is for educational purposes only; it does not constitute legal advice.